David Oxenford on Supreme Court Indecency Decision

April 28, 2009

WASHINGTON: Veteran media attorney David Oxenford, a partner with Davis Wright Tremaine, says the Supreme Court’s ruling against fleeting expletives is not the end of the indecency debate by any means. The high court bounced the major issue of the case back to the Second U.S. Court of Appeals, i.e., whether the premise violates the First Amendment.

“The Supreme Court is often unwilling to make a sweeping decision when it can decide a case on narrow grounds,” Oxenford wrote. “Here, the Second Circuit had decided the case solely on the basis of its perception that the FCC has not provided a rational basis for its decision. The Second Circuit had a discussion of the constitutionality under the First Amendment of the FCC’s decision, and stated that it questioned whether the decision met constitutional muster, but because it threw out the FCC decision on the administrative law question, it did not finally decide the constitutional issue. Thus, the Supreme Court, despite urging from the broadcasters in the case, declined to rule on the constitutional issue--sending it back to the Second Circuit for further consideration.”

Oxenford’s complete entry is available at his Broadcast Law Blog. He said he expects to post a more comprehensive analysis of the decision in the coming days.